Citation Nr: 1332666	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  12-23 695	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for a bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from April 1965 to January 1967.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the RO.  

The Virtual VA and VBMS folders have been reviewed.  


FINDING OF FACT

The currently demonstrated bilateral sensorineural hearing loss disability is shown as likely as not to be due to the Veteran's exposure to hazardous noise levels beginning in service.


CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his bilateral sensorineural hearing loss disability is due to disease or injury that was incurred in service.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

In light of the favorable decision herein, a detailed discussion regarding VA's duties pursuant to the VCAA is not required.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  


Factual Background

The service treatment records show that the Veteran underwent an audiometric examination at induction in April 1965.  Puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
-10 (5)
-10 (0)
-10 (0)
X
-10 (-5)
LEFT
-10 (5)
-10 (0)
-10 (0)
X
-10 (-5)

The service department records prior to October 31, 1967, used American Standards Association (ASA) units, and must be converted to the current International Standards Organization (ISO) units.  These units are the numbers indicated in parentheses. 

The Veteran underwent audiometric testing at separation in January 1967.  The findings are difficult to read but appear to show puretone thresholds, in decibels, as:  




HERTZ



500
1000
2000
3000
4000
RIGHT
0 (15)
0 (10)
0 (10)
X
0 (5)
LEFT
0 (15)
0 (10)
0 (10)
X
0 (5)

The post-service records show that the Veteran underwent audiometric testing on various occasions between 1996 and 2007.  Test results show bilateral sensorineural hearing loss.  

Records from Dr. D.S. dated in 2007 show that the Veteran reported a history of hearing loss for 40 years, which developed after exposure to cannon fire during Vietnam.  These records showed treatment for an ulcer in the ear canal with bone necrosis and include a diagnosis of bilateral sensorineural hearing loss, combined types.  

The Veteran underwent a VA examination in June 2010.  He reported military noise exposure to include Howitzer fire in Vietnam.  

The Veteran also reported having some occupational noise exposure, but denied recreational noise exposure.  Puretone thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
55
70
75
85
LEFT
35
55
85
85
90

Speech recognition scores were 40 percent on the right and 64 percent on the left.  

The examiner opined that the Veteran's hearing loss was not caused by or a result of combat noise exposure.  The following rationale was provided:

There [was] no scientific basis for delayed noise-induced hearing loss, i.e., hearing that [was] normal at discharge and causally attributable to military noise exposure 30 years later.  Since audiometric puretone thresholds revealed normal hearing acuity at time of separation, current hearing loss [was] NOT A RESULT OF MILITARY NOISE EXPOSURE.  

Analysis

The Veteran contends that current hearing loss is related to his military service.  In his VA Form 9, he reported being exposed to artillery fire while serving in Vietnam and having no hearing protection.  He asserts that he could not hear well following this noise exposure and that his hearing difficulties have continued since that time.  

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  

38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
 
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including sensorineural hearing loss, if manifest to a compensable degree within one year after discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 

Pursuant to 38 U.S.C.A. § 1154(b), combat veterans may establish service incurrence of a disease or injury through satisfactory lay or other evidence which is consistent with the circumstances, conditions or hardships of service, even in the absence of official record of such incurrence.  See also 38 C.F.R. § 3.304(d). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Evidence of record confirms a current bilateral hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385.  

Evidence of record also shows in-service acoustic trauma.  The Veteran served in Vietnam with a military occupational specialty (MOS) of armor crewman.  He also received a Combat Infantryman Badge (CIB).  His reports of significant in-service noise exposure are consistent with the circumstances of his service.  See 38 U.S.C.A. § 1154(b).

The question then, is whether the current bilateral hearing loss is related to in-service noise exposure.  As set forth, the VA opinion weighs against the claim.  The Board, however, finds this opinion to be of limited probative value in that it did not fully assess the Veteran's assertions of excessive noise exposure with symptoms at that time, and appears to be based largely on the absence of a hearing loss disability at separation.

The Board observes that regardless of in-service test results, the Veteran may establish entitlement to service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155 (1993).  

The Veteran reported difficulties with his hearing following in-service noise exposure and continuing to date.  The Veteran is competent to report these symptoms.  See Layno v. Brown, 6 Vet. App. 464, 469 (1994) (Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection").

In considering the Veteran's assertions, the Board acknowledges that he denied hearing loss on the report of medical history completed at separation.  However, he did report having or having had ear, nose or throat trouble.  The nature of these complaints were not specified.  

On review, and with resolution of reasonable doubt in the Veteran's favor, the Board finds his lay statements to be credible and sufficient to establish a continuity of symptomatology linking the onset of the claimed condition to service.  See 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss disability is granted.



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals



Department of Veterans Affairs